Citation NR: 9739752
Decision Date: 11/28/97 Archive Date: 12/03/97
DOCKET NO. 96-44 674 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to an increased rating for pulmonary
tuberculosis, far advanced, inactive, currently rated as 30
percent disabling.
2. Entitlement to service connection for bronchial asthma as
secondary to service-connected pulmonary tuberculosis, far
advanced, inactive.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Associate Counsel
INTRODUCTION
The veteran had active service from April 1946 to May 1947.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a July 1996 rating decision of the
Buffalo, New York, Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied entitlement to an
increased rating for service-connected pulmonary
tuberculosis, far advanced, inactive. The notice of
disagreement was received in August 1996. The statement of
the case was sent to the veteran in August 1996. The
substantive appeal was received in August 1996.
In a November 1996 rating decision, entitlement to service
connection for bronchial asthma as secondary to service-
connected pulmonary tuberculosis, far advanced, inactive, was
denied. A notice of disagreement was received in December
1996. A statement of the case was sent to the veteran in
January 1997. A substantive appeal was received in February
1997.
The Board notes that the veteran requested that he be
provided a personal hearing at the RO before a member of the
Board. However, his representative subsequently contacted
the RO and indicated that the veteran wanted his claim sent
directly to the Board at that time, prior to the scheduling
of a personal hearing. As such, the veteran was not
scheduled for a personal hearing at the RO before a member of
the Board.
REMAND
The record reflects that in a June 1951 rating decision, the
veteran was granted entitlement to service connection for
pulmonary tuberculosis, chronic, far advanced, active. A 100
percent rating was assigned effective from June 11, 1951. In
a May 1954 rating decision, the 100 percent rating was
reduced to 50 percent effective from March 1, 1956, and
thereafter reduced to 30 percent effective from March 1,
1960. It was indicated that the veteranís tuberculosis had
become inactive. In a November 1955 rating decision, the 100
percent rating was reassigned effective from June 11, 1951,
based on a finding that the tuberculosis had remained active.
In a May 1956 rating decision, the 100 percent rating was
reduced to 50 percent effective from March 20, 1958, and
thereafter reduced to 30 percent effective from March 21,
1962. It was indicated that the veteranís tuberculosis had
become inactive.
Thereafter, the veteranís pulmonary tuberculosis remained
inactive and apparently asymptomatic. In February 1963, the
veteran was admitted to a VA hospital with a chief complaint
of asthma. The veteranís history of active pulmonary
tuberculosis was noted. The examiner indicated that, prior
to admission, the veteran had been hospitalized at
Binghampton Hospital. The examiner indicated that the
veteran had bronchial asthma and had been suffering from
attacks thereof. Upon discharge, it was noted that the
veteran would return to Binghampton Hospital and the care of
his private physician at that facility. The records from
Binghampton Hospital are not of record.
Currently, the veteran contends that his service-connected
pulmonary tuberculosis has increased in severity. In
addition, he asserts that he has bronchial asthma as
secondary to his pulmonary tuberculosis.
In regard to his increased rating claim, the Board notes that
the evaluation assigned for a service-connected disability is
established by comparing the manifestations indicated in the
recent medical findings with the criteria in the VA's
Schedule for Rating Disabilities. The veteran was assigned
his original rating for service-connected pulmonary
tuberculosis under Diagnostic Code 6721 in the VA's Schedule
for Rating Disabilities . That Diagnostic Code was rated
under the General Rating Formula for Inactive Pulmonary
Tuberculosis pursuant to Diagnostic Code 6724. On August 19,
1968, Diagnostic Code 6724 was repealed and a new Diagnostic
Code, 6731, was promulgated, effective August 19, 1968. As
noted in the regulations, the repealed section still applies
to the case of any veteran who was receiving or entitled to
receive compensation for tuberculosis on August 19, 1968.
The rating schedule for determining the disability
evaluations to be assigned for respiratory disorders has
recently been changed, effective May 13, 1996. The Board
notes that the RO has not had an opportunity to adjudicate
the veteranís claim under the new criteria. Where a law or
regulation changes after a claim has been filed or reopened,
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the veteran
will apply. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991).
In addition, as noted, the veteran has alleged an increase in
severity in his service-connected disability since his last
date of examination and/or treatment.
In light of the foregoing, the Board finds that the veteran
should be afforded a VA pulmonary examination so that his
current level of impairment due to pulmonary tuberculosis may
be ascertained in conjunction with all of the applicable
rating criteria.
In regard to his claim for service connection for bronchial
asthma, the Board is not currently making any determination
as to whether this claim is well-grounded. The Board further
notes that in claims that are not well-grounded, the VA does
not have a statutory duty to assist a claimant in developing
facts pertinent to his claim. However, the VA may be
obligated under 38 U.S.C.A. ß 5103(a) (West 1991) to advise a
claimant of evidence needed to complete his application.
This obligation depends upon the particular facts of the case
and the extent to which the Secretary of the VA has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
As previously noted, the medical records from Binghampton
Hospital have not been obtained. According to the record,
these medical records reflect the initial onset of bronchial
asthma. As such, the Board finds that these records would be
useful in ascertaining the etiology of that disorder as the
current private medical records of Richard A. Stevens, M.D.,
do not provide this information. In addition, a review of
Dr. Stevensí records show that the veteran has been treated
for bronchial asthma, however, the Board is unable to
distinguish, what, if any, of the described symptoms are
symptoms of pulmonary tuberculosis. As noted, the veteran
should be afforded a pulmonary examination to resolve whether
he currently exhibits symptomatology of that disease. In
sum, the VA pulmonary examination should indicate the current
severity of the veteranís service-connected pulmonary
tuberculosis in light of the regulatory changes, and
determine whether there is any other respiratory impairment
present, and, if so, the etiology thereof.
Accordingly, this matter is REMANDED for the following
action:
1. The RO should request copies of all
clinical records of the veteran which are
not already in the claims file, from the
Binghampton Hospital. These records
should be associated with the claims
file.
2. The veteran should be afforded a VA
pulmonary examination to determine the
current severity of his service-connected
pulmonary tuberculosis in light of the
regulatory changes. The claims file
should be made available to the examiner
for review before the examination. The
examiner should specifically list the
veteranís current findings that are due
to pulmonary tuberculosis alone. If the
examiner concludes that there are no
findings due to pulmonary tuberculosis
he/she should so state. He/she should
state whether the pulmonary tuberculosis
is active or inactive.
3. The RO should readjudicate the
veteran's claims for entitlement to an
increased rating for pulmonary
tuberculosis, far advanced, inactive, and
service connection for bronchial asthma
as secondary to pulmonary tuberculosis.
In rating the veteranís pulmonary
tuberculosis, the RO should review the
veteranís disorder under both diagnostic
codes (6724 and 6731) and apply the most
favorable (the protected rating criteria
in effect prior to August 19, 1968; the
criteria in effect from August 19, 1968,
to May 13, 1996; and the current rating
criteria). If the action taken as to
either issue is adverse to the veteran,
he and his representative should be
furnished a supplemental statement of the
case that contains a summary of the
relevant evidence and a citation and
discussion of the applicable laws and
regulations to include all applicable
rating criteria. He should also be
afforded the opportunity to respond to
that supplemental statement of the case
before the claim is returned to the
Board.
No action is required of the veteran until further notice.
The Board expresses no opinion, either factual or legal, as to
the ultimate determination warranted in this case pending
completion of the requested development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veteransí Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veteransí Benefits Improvements Act of 1994, Pub. L.
No. 103-446, ß 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
ß 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBAís ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
E. M. KRENZER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1996).
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